Art. 108. Termination

1. Without prejudice to what provided for in paragraphs 1, 2 and 4 of Article 107, contracting authorities or entities may terminate a public contract during its terms, where one or more of the following conditions is met:

a) the contract has been subject to a substantial modification, which would have required a new procurement procedure pursuant to Article 106;

b) with reference to the modifications referred to in Article 106, paragraph 1, letters b) and c) have been exceeded the thresholds referred to in paragraph 7 of the abovementioned Article; with reference to the modifications referred to in Article 106, paragraph 1, letter e) of the abovementioned Article, the possible thresholds established by contracting administrations or contracting entities have been exceeded; with reference to modifications referred to in Article 106, paragraph 2, the thresholds referred to in that paragraph 2, letters a) and b) have been exceeded;

c) the contractor has, at the time of contract award, been in one of the situations referred to in Article 80, paragraph 1, both in the ordinary sectors and for concessions, and should therefore have been excluded from the procurement procedure or the concession award procedure, or with reference to special sectors should have been excluded pursuant to Article 136, paragraph 1;

d) the contract should not have been awarded in view of a serious infringement of the obligations under the Treaties, as declared by the Court of Justice of the European Union in a procedure pursuant to Article 258 TFEU.

1-bis. In the cases referred to in paragraph 1 the terms set forth in article 21-nonies of the Law of 7 August 1990 no. 241. paragraph introduced by legislative decree no. 56/2017 in force from 20-5-2017

2. Contracting authorities must terminate a public contract during the period of effectiveness of the contract if:

a) against the contractor the forfeiture of the qualification certificate has taken place due to having produced false documentation or false declarations;

b) with regard to the contractor, a definitive provision has taken place which provides for the application of one or more preventive measures referred to in the anti-mafia laws and related prevention measures, or whether a sentence has passed that has been judged for the offenses referred to in Article 80.

3. The construction manager or the person in charge of the performance of the contract, if appointed, when he ascertains a serious breach of contractual obligations by the contractor, such as to jeopardize the success of the services, shall send the person in charge of the procedure a detailed report, accompanied by the necessary documents, indicating the estimate of the work carried out regularly, the amount of which may be recognized to the contractor. He also formulates a dispute against the contractor, assigning a period of no less than fifteen days for the submission of his counterarguments to the person responsible for the proceeding. Once the above-mentioned counter-deductions have been assessed and the deadline has expired without the contractor having replied, the contracting authority, upon proposal of the person in charge of the procedure, declares the contract terminated.

4. If, apart from the provisions of paragraph 3, the performance of delays due to the negligence of the contractor with respect to the provisions of the contract, the manager of the works or the sole responsible for the performance of the contract, if appointed assigns him a term, which, except in cases of urgency, can not be less than ten days, within which the contractor must perform the services. Once the assigned deadline has expired, and a verbal and contradictory process has been drafted with the contractor, if the non-fulfillment remains, the contracting authority resolves the contract, without prejudice to the payment of penalties.

5. In the event of termination of the contract, the contractor is only entitled to payment of the services relating to the works, services or supplies regularly executed, reduced by the additional costs deriving from the termination of the contract.

6. The sole responsible of the procedure in communicating to the contractor the determination of the termination of the contract, has, with twenty days' notice, that the director of the works will prepare the consistency of the works already carried out, the inventory of materials, machines and means of work and their taking over.

7. If appointed, the test body proceeds to draw up, after having obtained the state of consistency, a report of technical and accounting assessment according to the procedures set out in this code. The report verifies the correspondence between what was done until the contract was terminated and entered into the accounting and the provisions of the approved project as well as any variant appraisals; it is also established the presence of any works, reported in the state of consistency, but not provided for in the approved project as well as in any variant appraisals.

8. In the cases referred to in paragraphs 2 and 3, in the final settlement of the works, services or supplies referred to the contract solved, the burden to be borne by the contractor is also determined in relation to the greater expense incurred to assign to another company the works where the contracting authority has not availed of the option provided for in article 110, paragraph 1.

9. In cases of termination of the procurement contract declared by the contracting authority, the contractor must provide for the collapse of the already set up sites and the clearing of the work areas and related appurtenances within the deadline assigned by the same contracting authority; in the event of failure to meet the deadline, the contracting authority shall provide the contractor with the related costs and expenses. The contracting authority, as an alternative to the execution of any precautionary jurisdictional measures, possessors or urgently called in any case that inhibit or delay the collapse of the building sites or the clearing of the work areas and related appurtenances, may deposit bail in favor of the contractor or provide bank guarantee or insurance policy in accordance with Article 93, equal to one per cent of the value of the contract. The right of the contractor to take action for compensation for damage remains.
Condividi questo contenuto: